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This Agreement governs the terms by which artists provide images, graphics, illustrations, animations, video, photographs, and other media content (''Content'') to members of the Voottoo.com community, through the website located at www.voottoo.com (the ''Site''). This Voottoo Content Submission Agreement is in addition to the Terms of Use applicable to the Site and to the Voottoo Content License Agreement that all persons downloading content from the Site (''Users'') have previously entered into. In the event of any inconsistency between this Agreement and the Terms of Use (which is incorporated into this Agreement by reference), the terms of this Agreement shall govern.
1. Introduction; Modifications
You understand that by providing Content or performing commissions of Content, you are agreeing to be bound to this Agreement. If you do not accept or agree with these terms, you may not upload or bid on commissions for any Content. Voottoo reserves the right, in its sole discretion, at any time to modify, discontinue or terminate the Site, or modify this Agreement without notice. All modified terms and conditions will be effective after we have notified you of the changes. If any modified terms and conditions are not acceptable to you, your sole remedy is to refrain from providing Content or follow the termination procedures set forth below under "Term and Termination". By continuing to upload or bid on or accept commissions for Content after we have notified you of the changes, you agree to be bound by such changes.
2. Provision of Content; Commissioned Work
(a) You may, from time to time, provide information, software, images, illustrations, graphics, photographs, audio files, video files, animations, flash files, data files, code snippets and other material to Voottoo using the upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, "Content"). Voottoo, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered "Accepted Content" for the purposes of applicable provisions of this Agreement.
(b) All rights, including title and copyright, in and to the uploaded Accepted Content will be retained by you, and no title or copyright is transferred or granted in any way to Voottoo or any third party except as provided in this Agreement and the Content License Agreement that you hereby acknowledge having reviewed and approved. Except to its affiliated and associated companies or as specifically permitted in this Agreement, Voottoo may not distribute Content to any third party for the purposes of resale or re-license. For clarity, nothing herein shall restrict Voottoo from providing access to the Site or Accepted Content to prospective buyers through an application program interface or other utility so long as all purchases are subject to the Content License Agreement. You will receive payment for the Licensed Work in accordance with the terms of Section 5 ("Compensation") below.
(c) Users may also commission unique Content ("Commissioned Work") from you (such users shall be hereinafter referred to as "Clients"), and you may bid on the opportunity to create such Commissioned Work based on the Client's specifications as agreed to between you and the Client, in a process further specified FAQ. You agree that any Commissioned Work will be works made for hire owned exclusively by the Client, and you hereby irrevocably transfer and assign to the Client, and agree to irrevocably transfer and assign to the Client, right, title and interest in and to the Commissioned Work, including all worldwide copyright rights. However, if any pre-existing copyrighted content belonging either to you or the Client is used in creating the Commissioned Work, such copyright and related intellectual property rights therein will remain with the original owner. You will receive payment for the Commissioned Work in accordance with the terms of Section 5 ("Compensation") below. You acknowledge that Voottoo shall have no liability for any breach of the Client related to your agreement with the Client for Commissioned Work.
3. Appointment
(a) You hereby appoint Voottoo as your non-exclusive agent to license royalty-free Content to third parties within the jurisdictions of Voottoo's business. For all Content, you grant Voottoo the right to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell image products or publicly perform or display Content to prospective licensees through the Site or other venues which it may determine from time to time, and the right to grant perpetual, worldwide, non-exclusive and non-transferable licenses or sub-licenses to end-users in accordance with the terms of the Content License Agreement that you hereby acknowledge having reviewed and approved.
(b) In addition to the foregoing appointment, Voottoo may use Accepted Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and your registered and unregistered trademarks relating to Content for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to you for use of Accepted Content for such business purposes.
4. ArtShare Program
You may elect to opt-in to participating in Voottoo's ArtShare Program, in which you will receive a portion of the revenue generated from sales of third party products bearing Content that you have licensed through the ArtShare Program ("Partner Products") in accordance with the terms of Section 5 ("Compensation") below. You will be able to select the individual Content that Voottoo may make available for sharing with partners.
5. Compensation
(a) Voottoo agrees to pay a portion of the fees collected with respect to Accepted Content that is downloaded or otherwise purchased by end-users according to the rate schedule set forth Rate Schedule, as it may be modified from time to time (the "Rate Schedule") and the licensing of Content recorded by Voottoo. The Rate Schedule may differentiate among various types of Content, such as images, illustrations, graphics, Flash files, video footage or otherwise in accordance with its terms. The Rate Schedule is subject to change in the sole discretion of Voottoo in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to you, you may refrain from providing additional Content or terminate this Agreement in accordance with its terms.
(b) With respect to compensation for Commissioned Work, the fee for each piece of Commissioned Work will be negotiated and agreed upon by you and the Client during the commissioning process. Through automated processes on the Site, once you and the Client have agreed upon a price and the specifications for the Commissioned Work and have satisfactorily sent confirmation of such agreement to Voottoo and the Client has paid the Commission fee in full, Voottoo will transfer one-half of the fees to your Voottoo account. Through automated processes on the Site, Voottoo will transfer the remaining balance after the Client has indicated that he/she has accepted the final Commissioned Work from you.
(c) In the event that you satisfy the requirements of the ArtShare Program, and subject to your fees collected with respect to sales of Partner Products bearing your Content (this payment is called the "Revenue Share") according to the rate schedule set forth here, as it may be modified from time to time (the "ArtShare Program Rate Schedule"). The ArtShare Program Rate Schedule is subject to change in the sole discretion of Voottoo in the ordinary course of its business without notice by posting such changes on the Site. If at any time the ArtShare Program Rate Schedule is not acceptable to you, you may refrain from participating in the ArtShare Program by notifying Voottoo or terminate this Agreement in accordance with its terms.
(d) In response to your written or automated request through the Site, Voottoo will endeavor to make payment of (i) fees in respect of purchased downloads of Accepted Content on a monthly basis on or about the 15th day of the month following the purchase of Accepted Content, (ii) compensation for Commissioned Work on a monthly basis on or about the 15th day of the month following the transfer of compensation for Commissioned Work or (iii) Revenue Share on a monthly basis on or about 45 days following the date in which revenue for Partner Products bearing your Content was received by Voottoo, provided such fees aggregate a minimum of US$50, failing which fees owing will be retained until they exceed such minimum. It is your responsibility to inform Voottoo in writing of any discrepancy related to that month as soon as possible after discovering the discrepancy, but in no event more than 5 days after receiving a payment from Voottoo for such month. In the absence of such notification the amount to be paid to you will be in accordance with Voottoo's recorded revenue measurements. In all cases, payment of fees to you will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) legal and other reasonable fees incurred in enforcing this Agreement; (iv) where purchases or licenses are by other than the credit system, fees payable to financial institutions for the processing of any credit card, debit card, or alternative payment method; and (v) any amounts owing by you to Voottoo under this Agreement or otherwise. Without limiting the generality of the foregoing, Voottoo is entitled to set-off against any amount owing to you, all amounts to which Voottoo is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of yours under this Agreement.
6. Managing Content
You acknowledge and agree that you will be responsible for each and every access or use of the upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that Voottoo is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. Voottoo shall have no liability or responsibility to monitor the provision of Content under your member name and password.
Voottoo does not and cannot review all communications or Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such communications or Content. Notwithstanding the foregoing, Voottoo reserves the right to delete, move, refuse to accept or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Voottoo or as it may direct. Voottoo shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Voottoo to determine Accepted Content is done as a courtesy only.
You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members with the intention that such licensees will adhere to the terms of the Content License Agreement. Voottoo cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, Voottoo shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. Voottoo will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
7. Representations and Warranties
(a) You hereby represent and warrant as follows:
1) You have the legal capacity and authority to enter into this Agreement, are the sole and exclusive owner of the Content and all underlying proprietary rights, including copyright, therein; have the right to grant all of the license rights contemplated to be provided under this Agreement; and have not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;
2) To the extent that the Content contains images of people or persons, you represent and warrant that you have obtained a valid and binding model release from all required parties that will permit the uses for such Content contemplated in the . You also warrant that where required by applicable law, you have also obtained a valid and binding release relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the uses under the Content License Agreement;
3) No portion of the Content as delivered to Voottoo from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
4) The Content will include all necessary descriptive information to enable its effective marketing on the Site, which information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword "doping" or improperly altering search results that would otherwise be applicable to such Content; and
5) The Content delivered to Voottoo hereunder represents original creations and expressions of subject matter, and no Content infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.
(b) You represent and warrant that you shall not: (i) license your own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another Voottoo member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph Voottoo may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.
8. Indemnity
(a) You agree to indemnify, defend and hold Voottoo and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the "Voottoo Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Voottoo Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement and the infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.
(b) Voottoo reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Voottoo's defense of such claim.
(c) You agree that neither Voottoo nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content, or for any disputes arising between you and any User or Client.
9. Term and Termination
(a) This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Voottoo by using http://www.voottoo.com/contact-us or such other means of written notice acceptable to Voottoo which enables confirmation of your identity and your intention to terminate. Voottoo may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If Voottoo terminates your membership, such termination shall be deemed to be notice of termination of this Agreement, as well.
(b) Either party may terminate this Agreement if the other party is in breach of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.
(c) In addition, Voottoo may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of Voottoo, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Artist provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Artist based on the information provided through the Site as part of the account profile of such Artist.
(d) Upon the termination of this Agreement, the grant of authority given to Voottoo shall cease subject to the following conditions: (i) Voottoo shall remove Accepted Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, Voottoo shall have the right to continue licensing Accepted Content until it is removed from the Site; and (iii) regardless of the expiration or termination of this Agreement, Voottoo will continue, in accordance with this Agreement, to pay compensation due to you in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
(e) Upon termination, Voottoo will be entitled to retain all amounts owing to you for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
(f) Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Voottoo pursuant to this Agreement.
(g) Termination of this Agreement shall operate without prejudice to Voottoo's rights, defenses and limitations of liability provided under this Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement and the Terms of Use relating to: Managing Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
10. General
(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
(b) In addition to the terms of this Agreement, the parties acknowledge that the provision of all Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Content outlined in the Site will be deemed to be a breach of this Agreement.
(c) Voottoo's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(d) This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without Voottoo's prior written consent. Voottoo may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(e) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(f) You consent to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site.
(g) Voottoo will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.
(h) If you have concerns relating to this Agreement, please contact Voottoo by using http://www.voottoo.com/contact-us.
11. Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF VOOTTOO AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND VOOTTOO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND VOOTTOO RELATING TO THE SUBJECT OF THIS AGREEMENT.
